Gender Identity, Bathrooms and the Courts

In recent weeks, the issue of gender identity as it applies to bathrooms in public schools has been in the news. In particular, as the U.S. government has taken a position on this issue, certain (Republican-controlled) states have objected to the government’s position. This objection (at least in the media) has not been on the merits — should students who identify as a different gender than their biological gender use the bathroom of their preferred gender identity or their biological gender — but rather attacking the federal government even taking a position. This attack is both historically flawed and misrepresents what is taking place.

The history part of this discussion requires going back to 1865. The United States government had just won the Civil War. As part of the executive plan for reconstruction, the southern states had to abolish slavery, but otherwise were generally allowed to re-form their government with few restrictions. These newly re-formed governments promptly enacted new legislation to greatly restrict the freedom of the former slaves. In response, Congress passed a series of statutes and then proposed a new constitutional amendment (which became the Fourteenth Amendment) guaranteeing equal protection of the laws to all residents and authorizing Congress to pass legislation to enforce that guarantee.

Fast forward a century to the 1960s and 1970s. Congress, again concerned about the lack of equality, passes a new series of laws including several statutes prohibiting discrimination in education. These statutes authorize the Attorney General (as well as the victims of discrimination) to file lawsuits against schools and school systems that discriminate on the basis of race or sex.

To enforce the legal requirement that both genders should have equal educational opportunity, the Department of Education long ago adopted regulations permitting schools to have separate boys and girls bathrooms as long as those bathrooms are roughly comparable. Nobody has or is challenging the authority of the federal government to adopt a regulation of this type. Clearly, if a school only had bathrooms for one gender (or if the bathrooms for the other gender were inadequate), the other gender would not have equal educational opportunities.

The Office of Civil Rights within the Department of Education was asked for its opinion on how this regulation applied to transgender individuals and issued an opinion in January 2015 indicating its belief that such individuals should be allowed to use the bathroom of the gender with which they identify. Such opinion requests are not uncommon. They are not a regulation, and, thus, are not legally binding, but courts do give them some weight. Additionally, they give a degree of notice of the position that the Department (and the Attorney General) are likely to take in any litigation in which the issue might arise.

One of those cases recently resulted in an opinion from the Fourth Circuit Court of Appeals (covering several states including North Carolina). This opinion, from January 2016, That opinion — finding that the regulation is ambiguous as to sexual identity — deferred to the Department’s interpretation of sexual identity in its opinion letter and found that a local Virginia school board violated a student’s right by requiring him to use the bathroom of his genetic gender rather than the bathroom of his gender identity. Potentially, this case could end up at the U.S. Supreme Court next term.

At the present time, what the government is doing is nothing unusual. The government has the responsibility for interpreting its regulations to determine what position it might take in potential litigation. It has informed those directly subject to those regulations of its interpretation (backed by a court decision finding that the interpretation is within the scope of reasonableness). None of these actions require local schools to comply with that interpretation. The provision of this guidance/directive does put the local schools on notice that, at some point in time, students or the Department may take legal action against the schools if they do not comply, but any requirement to comply would come from the courts accepting the government’s interpretation of the law and regulations.

Some of the criticisms suggest that such things as bathroom policies should be a local decision. Of course, the same argument could have (and was made) in the 1960s when the issue was separate bathrooms based on race. Rightly, Congress recognized (and the current Department regulations) recognize that bathrooms can be a tool for discrimination. And some of the comments made at the school board hearing in the Virginia case do demonstrate hostility toward transgender individuals.

This is not to say that the other half of the issue — the meaning of sex and gender — is an easy issue. At the end of the day, courts may decide that it is acceptable for schools to use birth gender as opposed to gender identity for pre-operative transsexuals just to avoid the difficult of verifying true gender identity and the conflict between how the individual perceives their own gender and how others who will be using the same bathroom perceive that individual’s gender. As long as the federal government has a role in assuring that states and local governments provide equal protection, however, it is just and appropriate that the federal government has a position on this issue.